F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

MAY 25 2000

PATRICK FISHER
Clerk

MELVIN GREEN,
Plaintiff-Appellant,
v.
HARSCO CORPORATION,
a Delaware Corporation,

No. 99-5139
(D.C. No. 98-CV-352-H)
(N.D. Okla.)

Defendant-Appellee,
and
FABSCO, INC., an Oklahoma
Corporation,
Defendant.
ORDER AND JUDGMENT

Before KELLY , McKAY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Melvin Green appeals the district courts May 4, 1999
order granting defendant-appellee Harsco Corporations motion for summary
judgment, and its June 14, 1999 order denying plaintiffs motion to vacate and
remand the matter to state court. The district court acquired diversity jurisdiction
pursuant to 28 U.S.C. 1332(a) and (c). We exercise jurisdiction pursuant to
28 U.S.C. 1291, and we affirm.
Background
In 1991, Green sustained a work-related injury to his back which required
two surgeries. As a result, Green was absent from work at Harsco for over one
year. 1 On May 22, 1995, Green sustained a second on-the-job injury to his back,
but continued to perform his work duties at Harsco. Harsco claimed that the first
it knew of this second injury was when it was notified that Green had filed
a workers compensation claim. At that point, Harsco requested that Green leave
work until he received a release from his doctor. Harsco asserted that Green
received a release to work from Dr. Jerry McKenzie on June 16, 1995, but never
At the time of Greens injury he was employed by defendant Fabsco
Corporation. In February 1995, Fabsco became a division of Harsco. To
minimize confusion, we will refer to Greens employer as Harsco throughout
this discussion.

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returned to work. In fact, Harsco asserted that it did not learn of the release until
it was filed with the state workers compensation court in October 1996.
Harsco asserts that it authorized treatment for Green with Dr. Hendricks,
his previous surgeon, but that Green never saw Dr. Hendricks. Harsco then had
Green examined by Dr. Paul. Even though Dr. Paul medically released Green to
return to work, Green continued to be absent. Finally on April 3, 1997, almost
two years after Green had been told to leave work until he received a doctors
release, Harsco terminated him because it no longer had a position for him.
In June 1997, Green filed suit in Oklahoma state court alleging
wrongful termination in violation of the Oklahoma Workers Compensation Act,
Okla. Stat. tit. 85, 5, and a claim under the Family and Medical Leave Act
(FMLA), 29 U.S.C. 2601-2654. Because Greens FMLA claim invoked federal
question jurisdiction, Harsco removed the case to federal court. Green withdrew
his FMLA claim, and the district court remanded the matter back to state court.
In May 1998, Harsco again removed the matter to federal court based on diversity
jurisdiction. Although Green initially moved for remand based on his allegation
that Harscos principal place of business defeated diversity jurisdiction, he
withdrew his motion after receiving Harscos response. Following a hearing and
the district courts entry of summary judgment in favor of Harsco, Green moved

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under Fed. R. Civ. P. 60(b)(6)

to vacate the summary judgment order and to

remand the case to state court, alleging that the district court did not have subject
matter jurisdiction because the amount in controversy did not exceed $75,000.
The district court denied the motion, and Green filed a timely notice of appeal.
On appeal, Green states his issues as: (1) the federal district court lacked
jurisdiction to consider Greens claims; and (2) there were disputed issues of
material fact that precluded the courts grant of Harscos summary judgment
motion. We conclude that the district court had jurisdiction to consider Greens
claims, and that the grant of summary judgment was correct.
Discussion
A. Jurisdiction
When a plaintiff files in state court a civil action over which the federal
district courts would have original jurisdiction based on diversity of citizenship,
the defendant or defendants may remove the action to federal court . . . .
Caterpillar Inc. v. Lewis , 519 U.S. 61, 68, (1996) (

citing 28 U.S.C. 1441(a)).

The burden is on the party requesting removal to set forth, in the notice of
removal itself, the underlying facts supporting [the] assertion that the amount in
Rule 60(b)(6) provides that the court may relieve a party or a partys legal
representative from a final judgment, order, or proceeding for the following
reasons: . . . (6) any other reason justifying relief from the operation of the
judgment.

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controversy exceeds [$75,000].

Laughlin v. Kmart Corp. , 50 F.3d 871, 873

(10th Cir. 1995) ( quoting Gaus v. Miles, Inc. , 980 F.2d 564, 567 (9th Cir. 1992)).
A plaintiff objecting to removal may file a motion asking the district court to
remand the case to state court.

See Caterpillar , 519 U.S. at 69. This court has

jurisdiction over a denial of a motion to remand to state court when coupled with
the appeal of a final judgment.

Huffman v. Saul Holdings Ltd. Partnership

194 F.3d 1072, 1076 (10th Cir. 1999) (

quoting Leffall v. Dallas Indep. Sch. Dist

.,

28 F.3d 521, 524 n.1 (5th Cir. 1994));

see also Caterpillar , 519 U.S. at 74 (stating

that a timely motion for remand is all that is required to preserve appellate review
of an objection to removal).
[T]here are two types of improperly removed cases: those in which the
federal court has no subject matter jurisdiction and those with defects in the
removal procedure itself.

Huffman , 194 F.3d at 1076. Here, Greens assertion

that the court had no subject matter jurisdiction is an issue that can never be
waived and may be raised at any time.

See id. at 1076-77. Because removal is

an issue of statutory construction, we review a district courts determination of

the propriety of removal de novo.

Id. (quoting Leffall , 28 F.3d at 524).

28 U.S.C. 1332(a) provides that district courts shall have original

jurisdiction of all civil actions where the matter in controversy exceeds the sum
or value of $75,000, . . . and is between (1) citizens of different States. Here,
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Green asserts that the amount in controversy had not been established as in excess
of $75,000, and therefore removal to federal court was inappropriate. In
determining whether the requirements of federal diversity jurisdiction have been
established, this court must look to the plaintiffs complaint.
Ltd. Partnership1985A v. Union Gas Sys., Inc.

See Penteco Corp.

, 929 F.2d 1519, 1521 (10th Cir.

1991). Where the pleadings are found wanting, [however], an appellate court
may also review the record for evidence that diversity does exist.

Id.

Greens amended complaint put forward three claims for damages generally
in excess of $10,000 as required by the Oklahoma Pleading Code, Okla. Stat. tit.
12, 2008(A)(2).

In his first motion to remand, however, Green stated that he

did not dispute that the amount in controversy exceeds $75,000.00. Appellants
App. at 314. Moreover, in his response to Harscos first request for admissions,
Green admitted that his claim for damages exceeded $75,000.

See id. at 345A.

Harsco relied on these admissions in its notice of removal, alleging that Greens
response to Harscos first request for admissions was other paper from which it
may be ascertained that the case is one which is or has become removable.
Appellees Supp. App. at 297 (

quoting 28 U.S.C. 1446(b)).

Section 2008(A)(1) states that [e]very pleading demanding relief for

damages in money in excess of Ten Thousand Dollars ($10,000.00) shall, without
demanding any specific amount of money, set forth only that the amount sought as
damages is in excess of Ten Thousand Dollars ($10,000.00), except in actions
sounding in contract.

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Where the complaint does not demand a dollar amount, the removing
defendant bears the burden of proving by a preponderance of evidence that the
amount in controversy exceeds [$75,000].
Co. , 116 F.3d 373, 376 (9th Cir. 1997);

Singer v. State Farm Mut. Auto. Ins.

see also Laughlin , 50 F.3d at 873. Here,

the district court was satisfied that Harsco had shown, by a preponderance of the
evidence, that the amount in controversy exceeded the jurisdictional amount.
We agree. Green voluntarily admitted that the amount of damages he was seeking
exceeded the jurisdictional amount.

See, e.g., Huffman , 194 F.3d at 1078 (holding

that a deposition constitutes other paper within the meaning of 1446(b)). This
was sufficient to invoke Harscos reliance for removal purposes and in fact, this,
combined with Greens admission in his first motion to remand, constituted more
evidence of the amount in controversy than could have been ascertained from
Greens complaint specifying an amount of damages. Consequently, the amount
in controversy was adequately established, the district court had subject matter
jurisdiction, and the district court correctly denied Greens motion to remand.

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B. Summary Judgment
We review the district courts grant of summary judgment de novo,
applying the same legal standard used by the district court.
ex rel. Dept of Mental Health & Substance Abuse Servs

Simms v. Oklahoma
., 165 F.3d 1321, 1326

(10th Cir.), cert. denied , 120 S. Ct. 53 (1999). Summary judgment is appropriate
where no genuine issues of material fact exist and the moving party is entitled to
judgment as a matter of law.

See Fed. R. Civ. P. 56(c). When reviewing a grant

of summary judgment, we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.

See Simms ,

165 F.3d at 1326.

Initially, Harsco asserts that because Green did not object to the order
granting summary judgment in his motion to vacate and remand, he has waived
that issue on appeal. We do not agree. Greens motion, filed within ten days of
the entry of judgment, tolls the time for filing Greens notice of appeal under
Fed. R. App. P. 4(a)(4).

See Fed. R. App. P. 4(a)(4)(vi) (providing that a Rule 60

motion filed within ten days after service of the judgment tolls the time for filing
a notice of appeal until entry of an order disposing of Rule 60 motion). Here, the
district court entered summary judgment in favor of Harsco on May 4, 1999.
Green filed his Rule 60(b) motion on May 11, 1999, within ten days of the
summary judgment order. Therefore, the time for filing a notice of appeal from
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the district court summary judgment decision was tolled until entry of the district
court decision on Greens Rule 60(b) motion on June 14, 1999. Green
subsequently timely filed his notice of appeal on July 1, 1999, rendering his
summary judgment issues properly before this court.

Because this case is grounded on diversity jurisdiction, we apply

Oklahoma substantive rules of law.

Blanke v. Alexander , 152 F.3d 1224, 1228

(10th Cir. 1998). A federal court sitting in diversity must apply the law of the
forum state, in this case Oklahoma, and thus must ascertain and apply Oklahoma
law with the objective that the result obtained in the federal court should be the
result that would be reached in an Oklahoma court.

Wood v. Eli Lilly & Co. ,

38 F.3d 510, 512 (10th Cir. 1994). In reviewing this case, we are obligated to
apply Oklahoma law, as announced by that states highest court.
Jackson Natl Life Ins. Co

Hays v.

., 105 F.3d 583, 587 (10th Cir. 1997). The district

courts determination of Oklahoma law is reviewed de novo.

See Salve Regina

College v. Russell , 499 U.S. 225, 239 (1991).

Green contends that the district court erred in concluding that there was no
disputed issue of fact as to whether Harscos termination of Green was in

We note that Harsco appears to confuse these circumstances with waiver of

issues not ruled on by the district court. Here, the summary judgment issues were
ruled on by the district court, and in light of Greens timely appeal, are properly
considered here.

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retaliation for his filing a workers compensation claim in violation of the

Oklahoma Workers Compensation Act, Okla. Stat. tit. 85, 5. Section 5(A)(1)
prohibits any person, firm, partnership, corporation or other entity [from]
discharg[ing] . . . any employee because the employee has in good faith . . .
[i]nstituted or caused to be instituted any proceeding under the [Oklahoma
Workers Compensation Act]. In order to establish a claim under this statute,
Green had to prove that (1) he was employed; (2) he suffered an on-the-job
injury; (3) he received medical treatment putting his employer on notice that he
had initiated workers compensation proceedings; and (4) he was consequently
terminated from his employment.

See Wallace v. Halliburton Co.

, 850 P.2d 1056,

1059 (Okla. 1993). To establish the fourth element, Green had to produce
evidence sufficient to support a legal inference that the termination was
significantly motivated by retaliation for exercising his statutory rights.

Id.

It appears to be undisputed that Green established the first three elements

of his prima facie case. The district courts focus was, therefore, on the fourth
element--whether a consequent termination occurred. Greens only argument on
appeal in support of his contention that he was terminated as a consequence of his
filing a workers compensation claim is that the timing of his discharge raises an
inference of retaliatory discharge. He claims that he was constructively
discharged when he was originally sent home after Harsco learned of his back
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injury and his workers compensation claim. That issue is not reviewable. In its
summary judgment order, the district court noted that, in his response to Harscos
motion for summary judgment, Green conceded that he had no viable claim for
constructive discharge.

See Appellants App. at 34 n.1. In this light the court

dismissed this claim with prejudice.

See id. Because this court will not consider

on appeal a claim abandoned in the district court,

see OConnor v. City & County

of Denver , 894 F.2d 1210, 1214 (10th Cir. 1990), we will not consider Greens
constructive discharge argument.
Reviewing the evidence in the light most favorable to Green, we do not
believe that a reasonable jury could conclude that his termination was motivated
by retaliation for filing a workers compensation claim.
Creek Nursing Centers,

See Taylor v. Cache

891 P.2d 607, 610 (Okla. Ct. App. 1994) (holding that

plaintiff is required to produce evidence establishing an inference that termination

was a consequence of filing a workers compensation claim). Green simply failed
to establish any link between his termination, a full twenty-one months after his
injury, and his workers compensation claim. Therefore, Green failed to establish
a consequent termination of employment.

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Id.

Conclusion
Upon careful review of the parties appellate briefs, the district courts
orders, and the record on appeal, this court AFFIRMS the grant of summary
judgment in favor of Harsco for substantially the reasons set forth in the district
courts order dated May 4, 1999. Additionally, we AFFIRM the district courts
denial of Greens post-judgment motion to vacate and remand.

Entered for the Court

Monroe G. McKay
Circuit Judge

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